MARILYN THOMAS, Employee

INDEPENDENCEFIRST INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued an appeal tribunal decision in this matter. The employee filed a timely petition for commission review.

The commission has considered the petition, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The appeal tribunal decision is affirmed. Accordingly, the employee is eligible for benefits in weeks 37 through 41 of 2012. The employee is required to repay the sum of $677 to the Unemployment Reserve Fund.

Dated and mailed March 4, 2014

Thomama9613usd . doc : 152 :  BR 330

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The employee petitioned for commission review of the appeal tribunal decision issued in this matter. In her petition, the employee requests that the commission "look for a fair and reasonable decision because [she] did not intend to defraud or cover up any wrong doings." Because the commission believes that the ALJ reached a fair and reasonable decision, the commission affirms the appeal tribunal decision in its entirety.

The department had issued a determination finding that, when filing weekly claim certifications for weeks 37 through 41 of 2012, the employee concealed work and wages. For unemployment insurance purposes, conceal means "to intentionally mislead or defraud the department by withholding or hiding information or making a false statement or misrepresentation." Wis. Stat. § 108.04(11)(g).

The employee appealed the department's determination. Following a hearing, the ALJ found that the employee did not intentionally fail to report work performed and wages earned on her weekly claim certifications for the weeks at issue. Instead, the employee simply misunderstood how the unemployment insurance program operates and which wages she needed to report. The employee was not trying to receive unemployment benefits to which she knew she was not entitled.

The commission agrees. Concealment requires an intent or design to receive benefits to which the claimant knows he or she is not entitled. Karandjeff v. Cmty. Living Alliance Inc., UI Dec. Hearing No. 11611430MW (LIRC June 20, 2012); Nestor Gutierrez, UI Dec. Hearing No. 00005766MD (LIRC July 19, 2002). Concealment will not be found where a claimant makes an honest mistake or misinterprets information received from the department. Joseph W. Hein, Jr., UI Dec. Hearing No. 00605374MW (LIRC Dec. 13, 2001); Scott G. Lynch, UI Dec. Hearing No. 10404406AP (LIRC Mar. 11, 2011). Here, the employee misunderstood what was expected of her. It was not her intent to defraud the department.

However, while the employee did not commit fraud, she did receive more benefits than she should have. All of the wages the employee had earned in the weeks at issue were not reported to the department, so they were not considered when her benefit entitlement for those weeks was calculated. After the wages are included in the calculation, the employee has an overpayment of $677.(1) Those benefits must be repaid to the department. State law does not allow for waiver of the recovery of the overpayment under the circumstances present in this case.

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uploaded 2014/03/11

(1)( Back ) Department records show that the employee received erroneous payments of $0 for week 37 of 2012, $96 for week 38 of 2012, $109 for week 39 of 2012, $109 for week 40 of 2012, and $363 for week 41 of 2012, totaling $677.